Scottish High Court of Justiciary Decisons

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Cite as: [2002] ScotHC 32

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Kirkwood

Lord Marnoch

Lord Sutherland

Appeal No: 303/02

OPINION OF LORD KIRKWOOD

NOTE OF APPEAL AGAINST SENTENCE

RICHARD LYNN

Appellant;

against

PROCURATOR FISCAL, Dumfries

Respondent:

_______

Appellant: Hamilton; Morison Bishop

Respondent: Coutts, A.D.; Crown Agent

20 March 2002

The appellant, Richard Lynn, appeared at Dumfries Sheriff Court and pled guilty to two charges of assault which took place on 27 January and 2 February 2001 respectively. He was placed on probation for six months and required to perform unpaid work for 80 hours.

We are informed by the sheriff that there had been a background of trouble involving local Lockerbie youths (such as the appellant was at the time) and youths coming into the town to go to the Ice Rink there. The first charge involved the appellant going up to the complainer in the High Street, Lockerbie, calling him "Lochmaben scum" and then punching and kicking him, causing slight injury to the complainer's leg. The incident in the other charge had occurred as the complainer in that charge was going to the play park in Lockerbie. He met the appellant and there was an argument between them. The appellant punched the complainer on the head and kicked him on the leg. At the time of the offences the appellant was 16 years of age.

The sheriff noted from the social enquiry report that since the offence was committed the appellant had moved to Hawick and that he had a balance of 98 hours of community service still to perform. The writer of the report had stated that the appellant remained in contact with his childcare social worker and had proved that he is able to seek help if he needs support, and in these circumstances he did not consider that a probation order was necessary. However, the sheriff disagreed with that view and decided to impose a short probation order for six months to cover the transitional period of the appellant's move from Lockerbie to Hawick and to make sure that he had guidance from a supervising social worker at this time.

Counsel for the appellant submitted to us that the order pronounced by the sheriff had been incompetent. The probation order required the appellant to carry out unpaid work for 80 hours, but in terms of section 239(2) of the Criminal Procedure (Scotland) Act 1995 the work had to be performed during the period of twelve months beginning with the date of the order. However, that was not possible when the probation order was only to last for six months. Counsel went on to submit that the court should either increase the period of the probation order to twelve months or quash the probation order and substitute a community service order for 80 hours. He suggested that the latter course was to be preferred as it was difficult to see what justification there was for the making of a probation order in this case.

The Advocate Depute informed us that the Crown's position was that the order which the sheriff had pronounced was incompetent.

In his report the sheriff referred to the contention in the Note of Appeal that his order had been incompetent. He observed that the order which he made was a probation order, and not a community service order in terms of section 238. He stated that section 229(5) applied inter alia the provisions of section 239(1) to (3) to such a probation order "subject to any necessary modifications". He took the view that, applying the provisions of section 239(2) of the Act, the appellant would have a period of twelve months to complete the 80 hours of unpaid work and that, although the probation order was only for a period of six months, it would in terms of section 239(2) "remain in force until the offender has worked under it for the number of hours specified in it".

Section 228 provides that a probation order may be made for a period of not less than six months nor more than three years, and in terms of section 229(4), where an offender has been convicted of an offence punishable by imprisonment, the court, subject to being satisfied on certain matters, may include in the probation order a requirement that the offender shall perform unpaid work for such number of hours (being in total not less than 40 nor more than 240) as may be specified in the probation order.

Section 229(5) of the Act is in the following terms:

"(5) Sections 238 (except subsections (1), (2)(b) and (d) and (4)(b)), 239(1) to (3), and 240 of this Act shall apply, subject to any necessary modifications, to a probation order including a requirement such as is mentioned in subsection (4) above as they apply to a community service order, and in the application of subsection (5) of the said section 238 for the words 'subsection (1) above' there shall be substituted the words 'subsection (4) of section 229 of this Act'."

Section 239(2) of the Act provides as follows:

"(2) Subject to section 240(1) of this Act, the work required to be performed under a community service order shall be performed during the period of 12 months beginning with the date of the order; but, unless revoked, the order shall remain in force until the offender has worked under it for the number of hours specified in it."

I have considered the statutory provisions and the submissions which were made to us, and the terms of the sheriff's report. A community service order requires an offender to perform unpaid work for a specified period, and in terms of section 239(2) that work, subject to section 240(1), has to be performed during the period of twelve months beginning with the date of the order. I am satisfied, and it was common ground, that the unpaid work which an offender is required to perform in terms of a probation order similarly has to be performed within a period of twelve months beginning with the date of the order. In the present case the probation order required the appellant to carry out unpaid work for 80 hours, an additional requirement imposed under section 229(4). Any additional requirement is, however, subject to section 229(1) which provides that a probation order may require the offender to comply "during the whole or any part of the probation period" with such a requirement. If the probation period is only six months, plainly under section 229(1) no requirement can be made which would extend beyond that period. In terms of section 229(5) of the Act, section 239(2) is to apply "subject to any necessary modifications" to a probation order which includes a requirement to perform unpaid work. However, a probation order, unlike a community service order, requires an offender to be under the supervision of an officer of the local authority for a specified period. In my opinion, section 239(2) does not have the effect of causing a probation order, with its supervision requirement, to remain in force indefinitely until the offender has worked under it for the full number of hours specified. It follows, in my opinion, that a probation order for less than twelve months cannot competently contain a requirement that unpaid work shall be performed by the offender. That being so, the order made by the sheriff in this case was incompetent.

The question arises as to what course of action should now be adopted. It seems to me that in the particular circumstances of this case there was really no satisfactory basis for the sheriff's decision to make a probation order for the minimum period of six months. I would quash the probation order and substitute a community service order for a period of 80 hours.